John Cuneo, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1985

276 N.L.R.B. 75 (N.L.R.B. 1985)

JOHN CUNEO INC
John Cuneo , Inc and Road Sprinkler Fitters Local
No 669 Cases 10-CA-13130, 10-CA-13280,
10-CA-13357, and 10-CA-13417
27 August 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 28 November 1984 Administrative Law
Judge William N Cates issued the attached supple
mental decision The Respondent and the General
Counsel filed exceptions and supporting briefs i
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings, findings,2 and
conclusions as modified
1 We disagree with the judge that the Respond
ent is not entitled to litigate Jerry Bnte's status as a
temporary or permanent employee in this backpay
proceeding because the issue was previously re
solved by the Board3 and court of appeals4 in the
underlying unfair labor practice case Bnte's status
as a permanent or temporary employee was not ad-
dressed in that proceeding We shall therefore con
sider the merits of the Respondent's argument
The Respondent contends that because Bnte was
a laid off permanent employee of another employer
at the time of hire he is not entitled to backpay
from the date he was recalled by his former em
ployer The Respondent argues it was not aware of
Bate s employment history with the prior employ
er at the time it hired Bnte,5 but does not other
wise dispute it hired him as a permanent employee
The Respondents argument thus appears to be
that, because of Bnte's layoff status with another
employer, he could only achieve temporary status
with the Respondent even though the Respondent
considered him to be and treated him as a perma
nent employee We disagree
i On 7 June 1985 the Respondent filed a motion to supplement brief
accompanied by a supplemental brief the General Counsel filed a re
sponse opposing the motion 24 June We grant the motion and have fully
considered the supplemental brief
9 The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
J 253 NLRB 1025 (1981)
4 681 F 2d I 1 (D C Cir 1982) cert denied 459 U S 1178 (1983)
5 Brite faded to list the former employer on his job application
75
The Respondent has not shown that Bnte would
have left its employ and returned to the prior em
ployer had the Respondent not discharged him un
lawfully Bnte could have remained with the Re
spondent indefinitely even though he initially ob
tained a job only because he had been laid off The
Respondents unlawful conduct deprived him of an
opportunity to make that choice Accordingly,
Bnte's previous job history has no bearing on his
status as a permanent employee entitled to the full
measure of reinstatement and backpay warranted
by the circumstances
2 We`agree with the judge s finding that Brite is
not entitled to backpay for the 11 week period
from 1 August until 19 October 1981 while he was
engaged in a lawful stake against an interim em
ployer, but we do so only for the following rea
sons The General Counsel conceded in his brief to
the judge that Bnte absented himself from the job
market during the strike While we adhere to the
longstanding principle that a discnminatee incurs
no willful loss of earnings merely by engaging in a
lawful strike at an interim employer,6 his duty to
make reasonable efforts to secure and retain em
ployment continues 7 By absenting himself from
the job market for the entire 11 week strike, Bnte
willfully chose not to seek interim employment and
is therefore not entitled to backpay for that
period 8
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent, John Cuneo, Inc, Chattanooga, Tennes-
see, its officers, agents, successors, and assigns,
shall pay Jerry Bnte $16,877 49, plus interest
8 J H Rutter Rex Mfg Co 194 NLRB 19 21 fn 10 (1971) W C
Nabors Co 134 NLRB 1078 1096 (1961) modified on other grounds 323
F 2d 686 (5th Cir 1963)
7 American Bottling Co 116 NLRB 1303 1306-07 (1956)
8 J H Rutter Rex Mfg Co supra W C Nabors Co supra
We do not hold however that a discrimmatee is not entitled to back
pay simply because he fails to work during all or part of a strike what
ever its duration Rather the issue is whether under the circumstances
the discrimmatee acted reasonably Here it is admitted that Brite simply
removed himself from the job market for nearly 3 months during the
strike at his interim place of employment and thus willfully lost earnings
J Howard Trimble Esq for the General Counsel
William P Hutcheson Esq and Gary W England Esq
of Chattanooga Tennessee for the Respondent
William W Osborne Jr Esq of Washington D C for
the Charging Party
S
276 NLRB No 12
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
WILLIAM N CATES Administrative Law Judge A
hearing in this case was held before me on September 4
and 5 1984 at Chattanooga Tennessee to determine the
amount of backpay for claimant Jerry Bnte (Bete or
claimant Bnte) which would make him whole for losses
resulting from John Cuneo Inc s (Respondent) failure to
reinstate him on November 14 1977 The Board in its
Decision and Order issued on January 7 1981 i found
that Brite among other employees was an unfair labor
practice striker entitled to immediate reinstatement on his
unconditional offer to return to work The Board found
that an unconditional offer to return to work was made
on behalf of Brite and others on November 14 1977 The
Court of Appeals for the District of Columbia Circuit
enforced in full the backpay provisions of the Board s
Order in an opinion dated June 18 1982 2 The United
States Supreme Court on January 24 1983 denied Re
spondent s petition for a writ of certiorari 3
A controversy arose over the amount of backpay due
claimant Brite under the terms of the Board s Order and
the Regional Director for Region 10 of the Board issued
a backpay specification and notice of hearing on July 11
1984 Respondent timely filed an answer and amended
answer to the backpay specification
On the entire record in this case including my obser
vation of the demeanor of the witnesses and after careful
consideration of briefs submitted on behalf of the Getter
al Counsel Respondent and Road Sprinkler Fitters
Local No 669 (the Union) I make the following
FINDINGS OF FACT
I BACKGROUND
At the outset it is noted that Respondent at trial stipu
lated to the calculations of the Board s compliance offs
cer with respect to back wages for certain time periods
in the backpay specification Respondent however takes
issue with respect to whether it is liable for backpay
during all the time periods specified in the backpay spec
ification Respondent contends it is not liable for any
backpay for that period of time during which claimant
Brite engaged in a strike against one of his interim em
ployers Additionally Respondent raises the issue of
whether claimant Brite exercised reasonable diligence
with respect to obtaining interim employment
The facts of the instant case are for the most part un
disputed I will address necessary credibility resolutions
as they apse in deciding the particular issues herein
II THE ISSUES
This case presents a number of questions which were
raised and/or thoroughly litigated The issues are gener
ally summarized for purposes of discussion as follows
i 253 NLRB 1025 (1981)
2 681 F 2d 11 (1982)
J 112 LRRM 2500 (1983)
a Whether the Union has the right to challenge the
failure of the General Counsel to include an additional
claimant in the backpay specification
b Whether the claimant (Bute) was a permanent em
ployee of Respondent such as to entitle him to backpay
c Whether Respondent made an offer of reinstatement
to claimant Brite on September 21 1978 4
d Whether the claimant (Bute) is entitled to backpay
from Respondent for that period of time when he and
others engaged in a lawful strike against an interim em
ployer
e Whether the claimant (Bute) failed to exercise rea
sonable diligence with respect to obtaining interim em
ployment
A Whether the Union has the Right to Challenge the
Failure of the General Counsel to Include an
Additional Claimant in the Backpay Specification
The Regional Director for Region 10 of the Board in
his backpay specification and notice of hearing issued on
July 11 1984 noted the Boards Decision and Order of
January 7 1981 (253 NLRB 1025) directed Respondent
herein to reinstate and make whole its employees Donald
Gregg Jerry Bnte Allen Bower David Worley Stan
Ray and Melvin Talkington for their losses resulting
from Respondents unfair labor practices in violation of
Section 8(a)(1) and (3) of the Act The Regional Direc
tor also noted the United States Court of Appeals for the
District of Columbia issued its judgment on June 18
1982 (681 F 2d 11) enforcing in full the reinstatement
and backpay provisions of the Board s Decision and
Order In the backpay specification the Regional Direc
tor stated a controversy had arisen only over the amount
of backpay due Jerry Brite and as such ordered a hear
ing to resolve that controversy only (G C Exh 1(c))
Thereafter about July 20 1984 the Union filed with the
Regional Director for Region 10 of the Board an Ob
jection by Road Sprinkler Fitters Local Union No 669
U A AFL-CIO to the Exclusion of Discriminatee
Melvin Talkington from the Backpay Specification
(G C Exh 1(h)) In its objection the Union contended
the issue should be litigated regarding whether the posi
tion offered Melvin Talkington by Respondent on
August 17 1983 was substantially equivalent to the posi
tion he held at the time of Respondents unfair labor
practices against him About August 1 1984 Respondent
filed a Response to Objection by Road Sprinkler Fitters
Local Union No 669 U A AFL-CIO to the Exclusion
of Discnmmatee Melvin Talkmgton from the Backpay
Specification (G C Exh 1(i)) In its response Respond
ent contended the Board s Rules and Regulations did not
make any provisions for and did not recognize an objec
tion such as the one filed by the Union Respondent as
serted in its response that the Regional Director deter
mined the contents of a backpay specification just as ex
4 There are a number of intertwined issues that I shall treat with this
particular issue namely ( 1) whether the offer of reinstatement if made
was received (2) whether the offer of reinstatement if made was legally
sufficient to toll any backpay obligation of Respondent and (3) whether
the General Counsel is estopped from litigating the validity of the offer
of reinstatement if such an offer was made
JOHN CUNEO INC
clusively as he controlled the contents of any complaint
he might issue in an unfair labor practice case
The Regional Director for Region 10 of the Board in
a letter dated August 3 1984 referred to the chief ad
mmistrative law judge for informational purposes the
Unions objection and Respondents response to his fail
ure to include Talkmgton in the backpay specification he
issued In his letter the Regional Director stated I
have determined not to amend my Specification
and further stated My refusal to amend the Specifica
tion is without prejudice to the rights of the parties pur
suant to Ace Beverage Co 250 NLRB 646 (1980) (G C
Exh 10))
On August 28 1984 the Union filed a Motion by
Road Sprinkler Fitters Local Union No 669 U A
AFL-CIO to Amend the Backpay Specification (G C
Exh 1(r)) In its motion the Union urged that Talking
ton be included in the backpay specification and that the
issue of whether he had been properly offered reinstate
ment on August 17 1983 be litigated The Union asserts
the Regional Directors backpay specification failed to
comply with the Board s Decision and Order (253
NLRB 1025) and that under Ace Beverage Co supra, the
backpay specification must be amended or rejected
At trial herein the Union contended the Board is the
final authority on compliance with its Orders and that
neither the Regional Director nor the General Counsel
has unreviewable authority in connection with compli
ance matters The Union urged that the issue of whether
Talkington was properly offered reinstatement to an ap
propnate position raised a credibility issue that could
only be resolved by a hearing
At trial the General Counsel stated the matter mvoly
mg Talkmgton had been raised with Region 10 of the
Board some months prior to the trial herein and that an
investigation had been conducted following which a de
termination was made not to include Talkington in the
backpay specification The General Counsel however
commented at trial I would not think the General
Counsel would wish to preclude the Union from pursu
mg this matter on their own But we do not join in of
course to amend the Backpay Specification to include
Mr Talkington
Respondent contended at trial that the Union s motion
was untimely Respondent asserted the Union had writ
ten a letter to the General Counsel months earlier object
mg to the fact Talkmgton would not be included in any
backpay specification and that the matter had been re
solved in final form unfavorable to the Union and as
such could not thereafter be raised again
At trial I denied the Union s motion to amend the
backpay specification issued by the Regional Director
for Region 10 of the Board The Union in its posthearing
brief requested I reconsider my ruling and reopen the
record for the purpose of receiving evidence regarding
the issue of whether Talkington was properly offered re
instatement by Respondent
I am convinced that my ruling at trial was correct
and I am unpersuaded to change that ruling It is estab
hshed that the Union complained on December 1 1983
in writing to the General Counsel about the fact the Re
gional Director for Region 10 of the Board had on No
77
vember 18 1983 determined not to include Talkmgton
in the backpay specification that would issue with re
spect to Respondent In response to the Union s appeal
of December 1 General Counsel William A Lubbers no
tified the Union via a letter dated April 19 1984 that he
was denying their appeal of the Regional Directors de
termination relating to Talkington General Counsel Lub
bers in his letter stated in part
Your appeal has been carefully considered The
appeal is denied essentially for the reasons set forth
in Regional Director Arlook s letter of November
18 1983 In this regard as you were telephonically
advised by the Regional Office on April 13 1984
Employer records corroborate sworn testimony that
the position of receiving clerk was occupied by an
individual other than Talkington at the time of the
September 1977 strike Accordingly in these cir
cumstances the Employer was not obligated to
offer Talkington reinstatement to the shipping and
receiving clerk position [C P Exh 1 ]
I concluded at trial and continue to conclude that the
Union should have filed a timely appeal of General
Counsel Lubbers determination to the Board as contem
plated in Ace Beverage Co 250 NLRB 646 (1980) The
Board in Ace Beverage clearly stated that the General
Counsel did not have final authority in compliance mat
ters but rather had delegated authority to carry out the
Board s intent that its orders be properly implemented
The Board in that respect held [I]n compliance matters
the General Counsel does not act on his own initiative as
he does in the issuance of complaints but as the Board s
agent in effectuating the remedy ordered 250 NLRB at
648 Thus the General Counsels determination not to in
clude Talkington in the backpay specification would
have been reviewable at that time by the Board The
Union failed to take an appeal to the Board from that de
termination of the General Counsel and as such it may
not now timely raise such an appeal The Union s con
tention that the Board s Rules and Regulations do not
provide a procedure for obtaining review of such deter
minations by the General Counsel is of no avail to it in
that Ace Beverage Co supra clearly sets forth the proce
dure to be followed in that the aggrieved party may file
a motion to the Board for clarification and/or determina
tion of compliance with its own decisions
It is my opinion that the Board and only the Board
can order the General Counsel to amend its backpay
specification to include additional claimants that the
General Counsel has administratively determined should
not be included Simply stated the Unions motion to
amend the backpay specification made at trial and re
newed in posttnal brief is one that I do not have the au
thonty to grant even if such a motion had been timely
raised with me In conclusion I again deny the Union s
request to amend the backpay specification of the Gener
al Counsel
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B Whether the Claimant (Bute) was a Permanent
Employee of Respondent such as to Entitle Him to
Backpay
At trial Respondent raised and I rejected its conten
tion that Brite was only a temporary employee of Re
spondent I ruled that the issue of whether Bnte was an
employee of Respondent entitled to reinstatement and
backpay had been decided in final form by the Board
and the circuit court Both the Board and the circuit
court throughout their respective decisions referred to
Bnte and others as employees of Respondent and direct
ed they be reinstated and made whole by Respondent
Respondent in its posttnal brief renews its contention
that Brite was a laid off permanent employee of an em
ployer other than Respondent and is not entitled to
backpay from Respondent after the time he was recalled
to work at his former permanent employer Respondent
asserts that because Bnte did not state on his employ
ment application with it that he had previously worked
for an employer (Eclipse Lookout Co) and was on lay
off status from that employer it was fraudulently denied
the opportunity at the unfair labor practice trial to liti
gate the issue of whether Bnte was a temporary employ
ee of Respondent Respondent contends that the issue of
Bnte s temporary employment status should be decided
in the instant case and cites the Board s Supplemental
Decision and Order in Circle Bindery Inc 232 NLRB
1185 (1977) in support of its contention
I adhere to my ruling at trial that matters which were
raised or could have been raised such as the temporary
or permanent employment status of Brite in the unfair
labor practice proceeding may not be litigated in a subse
quent backpay proceeding In the instant case Respond
ent failed to raise at the unfair labor practice trial the
issue of whether Bnte was a temporary or permanent
employee of Respondent ti The finding by the Board and
circuit court that Bnte was an employee of Respondent
is binding on Respondent under the doctrine of res Judi
cats The doctrine of res judicata clearly is applicable in
Board proceedings The Board held in Laredo Packing
Co 271 NLRB 553 (1984) enfd 730 F 2d 405 (5th Cir
1984), that its findings and conclusions in an unfair labor
practice case are binding and may not be relitigated in
subsequent backpay proceedings I reject Respondent s
contention that Bnte s failure to list one of his prior em
ployers Eclipse Lookout Co on his employment apple
cation fraudulently prevented it from raising the issue of
his employment status at the unfair labor practice hear
ing Respondent has not demonstrated that it could not
have with reasonable effort obtained the full employ
ment history of Brite prior to the unfair labor practice
trial The evidence Respondent would base its contention
5 The Circle Bindery case that Respondent would rely on is distinguish
able In the original Circle Bindery Inc case reported at 218 NLRB 861
(1975) the Board noted that some evidence had been developed on the
temporary versus permanent status of an employee Verrochi but stated
it did not have all the relevant information before it sufficient to evaluate
and clearly resolve the matter of Verroclu s status and as such left for
determination at the compliance stage the question of whether Verrochi
qualified for reinstatement and the extent of backpay period for him As
noted above Respondent in the instant case never raised Bnte s employ
merit status during the unfair labor practice trial
on does not qualify as newly discovered or previously
unavailable evidence such as to remove the application
of the doctrine of res judicata from it In summary it is
clear the issue of whether Bnte was a permanent em
ployee of Respondent entitled to backpay has been de
cided in final form and may not be relitigated in the case
before me
C Whether Respondent Made an Offer of
Reinstatement to Claimant Bnte on September 21
1978
In considering the issue of whether an offer was made
to Bnte on September 21 1978 I shall also consider a
number of intertwined issues If it is determined that an
offer was made was the offer received by the claimant
If an offer was made to and received by the claimant
was it legally sufficient to toll any backpay obligation of
Respondent Lastly I shall consider the issue of whether
the General Counsel may be allowed to litigate the valid
ity of the offer or is he estopped from doing so?
As noted elsewhere in this decision and as admitted by
Respondent the claimant (Bute) was entitled to rein
statement as of November 14 1977 There is no dispute
that Bnte was reinstated by Respondent on August 19
1983 Therefore the backpay liability of Respondent may
not under any circumstances exceed the time period
from November 14 1977 until August 19 1983
Respondent contends a valid offer of reinstatement
was made to Bnte on September 21 1978 Respondent in
a pretrial motion to the Board contended not only that a
valid offer of reinstatement had been made to Bnte on
that date but that the validity of the offer had been for
all intent and purposes litigated at the underlying unfair
labor practice hearing 6 Respondent urged in its motion
both to the Board and at trial herein and continues to
urge in its posttnal brief that partial summary judgment
in the instant case is warranted and would relieve Re
spondent of all backpay liability to the claimant except
for a very limited amount ($500 53)
Respondent contends and the facts establish that the
underlying unfair labor practice trial before Judge James
T Youngblood was held over several days in two sepa
rate sessions at Chattanooga Tennessee The first session
was held on September 12 13 and 14 1978 (253 NLRB
at 1030) Respondents president Bob Splawn testified on
September 13 1978 at the underlying unfair labor prac
tice hearing that he intended to offer Brite employment
in the future and stated that Brite had not previously
been offered reinstatement because he was lost in the
shuffle (R Exh 10(a)) The second session of the trial
Respondents motion labeled Motion For Partial Summary Judg
ment was filed on August 31 1984 with the Regional Director for
Region 10 of the Board The Region forwarded Respondents motion to
the Board The Board in an unpublished Order dated September 24 1984
denied Respondents motion without prejudice to it being renewed before
an administrative law judge On September 4 1984 Respondent raised
before me the identical motion that it had filed with the Regional Direc
tor on August 31 1984 Inasmuch as there was no clear understanding at
the trial between the parties as to whether Respondents August 31 1984
motion had been properly forwarded to the Board I denied Respondents
motion until such time as the Board could have an opportunity to address
the motion
JOHN CUNEO INC
in the underlying unfair labor practice case was held on
November 14 15 and 16 1978 During that period be
tween the first and second session of the underlying
unfair labor practice trial Respondents president Splawn
asserts that he directed a mailgram be sent to Bnte on
September 21 1978 offering him reinstatement (R Exh
19) T A confirmation copy of the mailgram was received
into evidence in the underlying unfair labor practice trial
(Tr 141) 8 Respondents president Splawn testified Brite
did not respond to the September 21 1978 mailgram
The judge s decision in the underlying unfair labor
practice case suggests and the Board s Decision and
Order in my opinion clearly indicates that the matter of
whether Brite was offered reinstatement on September
21 1978 and the legal ramifications of such an offer was
not litigated in the underlying unfair labor practice case
Judge Youngblood s only reference to the matter was as
follows
At the time of the hearing all of the employees who
had been on strike and requested reinstatement
with the exception of Jerry Bnte and Melvin Talk
ington had been offered reinstatement [253 NLRB
at 1034 ]
The Board in its Decision and Order made three refer
ences to any offer of reinstatement having been made to
Bite The three references are as follows
Of the remaining six employees, none was
promptly returned to work and at the time of the
hearing Brite and Talkington still had not received
offers of reinstatement [253 NLRB at 1026 ]
As noted earlier the evidence is uncontroverted
that at the time of the hearing Brite and Talking
ton had yet to be offered reinstatement [253 NLRB
at 1026 ]
Baste and Talkmgton were in essence discharged
since they were never offered their jobs back [253
NLRB at 1027 ]
I reject Respondents contention that both the judge
and the Board were referring in their respective deci
sions to the fact that no offer of reinstatement had been
made to Brite prior to the first session of the unfair labor
practice hearing and not that no offer was ever made to
him The judge s decision was written well after both
sessions of the unfair labor practice hearing were held,
and the judge indicated at the beginning of his decision
that he had considered the entire record I find, after
considering these facts in light of the above quoted por
tions of the Board s Decision and Order that the matter
of whether an offer of reinstatement was made to Bnte
on September 21 1978 was not fully litigated in the un
derlymg unfair labor practice case I shall therefore
consider whether Brite was offered reinstatement at any
t The issue of whether the mailgram was actually sent and or received
and its legal effect will be discussed hereinafter in this decision
8 R Exh 27 in the underlying unfair labor practice trial appears to be
identical to R Exh 19 in the instant case (See Tr 937 975 and 976 in
the underlying unfair labor practice case )
79
time prior to Respondent s written offer of August 17
1983 (R Exh 17)
The evidence is overwhelming that Respondent sent a
mailgram to Bnte on Thursday September 21 1978 Re
spondent s president Splawn testified and I credit his tes
timony on this particular point that he directed a mail
gram be sent to Bnte on that date Respondents presi
dent Splawn produced at the teal herein a confirmation
copy of the mailgram he had directed be sent (R Exh
19) Brite acknowledged that his home address about
SPi'ember 21 1978 was the same as that reflected on
the mailgram that Splawn had directed be ^t.._ The ad
dress on the mailgram was also identical to the address
Brite had given on his employment application at the
time he applied for employment at Respondent I there
fore conclude and find that Respondent sent a mailgram
to Bnte at his correct home address on September 21
1978 Bnte denied that he received the mailgram I dis
credit Bnte s testimony on this particular point for a
number of reasons At various places in his testimony
Bite made it clear that in applying for employment he
would willfully withhold facts on an employment appli
cation if he thought supplying the facts would be detn
mental to his obtaining employment Bnte left a clear im
pression with me that he would do or say whatever he
perceived would be in his own best interest without
regard for the full truth These facts taken in conjunction
with the fact that Respondent produced a confirmation
copy of the mailgram fully persuades me that not only
was the mailgram sent to Brite but that it was in fact
received by hum 9
Having found that a mailgram offer was made to and
received by Bnte, the issue becomes one of whether the
offer was legally sufficient to toll Respondents backpay
obligations to Bnte Respondents September 21 1978
mailgram reads as follows
John Cuneo Inc anticipates a need for another em
ployee on the first shift Should you be interested in
reinstatement advise me immediately If I do not
hear from you by the close of the work day Sep
tember 25 1978 I will assume you have no interest
Charles 'zell
John Cuneo Inc
Respondent contends that whether the offer was a le
gally sufficient offer of reinstatement should not be de
termined by the precise language of the mailgram itself
but rather should be determined in light of all the sur
rounding circumstances Respondent contends the mail
gram informed Bnte of an anticipated opening and re
quested he advise Respondent of his intent with respect
to the anticipated position Respondent contends the
mailgram did not demand Brite respond for work by a
certain date but rather only requested that he inform Re
Assuming arguendo that I had not found the mailgram to have been
received Respondent would nonetheless be entitled to a finding that a
good faith attempt had been made to make an offer to Brite such as to
toll any backpay obligations it had to him if the attempted commumca
tion on its face contained a valid offer of reinstatement See Bodolay
Packaging Machinery 271 NLRB 10 fn 2 (1984)
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent of his intention with respect to reinstatement
Respondent further contends that the time for a response
from Brite was reasonable inasmuch as Respondent s
president Splawn had testified on September 13 1978
that he would offer Brite employment in the future and
that the Unions attorney was presumably present at the
time Splawn testified and could be presumed to have in
formed Bnte of Splawn s testimony concerning the offer
Respondent seems to suggest that Bnte was present at
the time Splawn testified on September 13 1978 because
Bate also testified at the underlying unfair labor practice
trial on that date Therefore Respondent asserts Bnte
had more time to think about the reinstatement offer
than what was actually spelled out in the mailgram itself
The General Counsel contends that the offer even if
received was not legally sufficient to toll Respondent s
backpay obligations to Brite The General Counsel con
tends there was no description in the mailgram of the job
being offered Bnte and that as such he could not have
ascertained if the job was substantially equivalent to his
former position or not Secondly the General Counsel
contends the mailgram did not allow sufficient time for
Bate to respond to it and the General Counsel asserts
there is no burden placed on a claimant to request addi
tional time to respond to an offer or to make any inquiry
into the nature of any reinstatement offer The General
Counsel argues that the earliest the mailgram could have
been delivered to Bnte s home would have been on a
Friday September 22 or Saturday September 23 1978
thus leaving Bnte only 1 day to respond to the offer
The General Counsel further contends that the reinstate
ment obligation properly rests with Respondent and that
it failed to satisfy its obligation in the instant case by fail
ing to make Brite a valid and unconditional offer of rein
statement
The Board has long held that an employers offer of
reinstatement must be specific unequivocal and uncon
ditional in order to toll the backpay period L A Water
Treatment 263 NLRB 244 at 246 (1982) see also Brenal
Electric 271 NLRB 1557 (1984) The Board observed in
L A Water Treatment
It is the employer who carries the burden of dem
onstratmg a good faith effort to communicate the
offer to the employees An employer is relieved of
his duty to reinstate only when a proper offer is
made and unequivocally rejected by the employee
The Board has also required that an offer of rein
statement must allow the employee a reasonable
time in which to make arrangements to begin work
This requirement takes on a special significance
where the employee has obtained other em
ployment at the time the offer is made In such cir
cumstances the Board requires that the reinstate
meat offer afford the employee an opportunity to
make a considered choice of whether to retain his
present employment or to return to his former job
The offer must also allow the employee to give rea
sonable notice to his current employer should he
choose the latter course
Guided by the above principles I am persuaded Re
spondent s offer of September 21 1978 was invalid for a
number of reasons The mailgram failed to clearly state
that a position was available and being offered It merely
stated that Respondent anticipated a need for another
employee The mailgram did not even specify what job
position Respondent anticipated it might need another
employee for Respondents mailgram amounted to noth
ing more than a notice to Bnte that there might be a
future opening at Respondent for employment Such
communication falls far short of a valid offer of reinstate
ment such as to toll Respondents backpay obligations to
Bate Contrary to the contentions of Respondent the
trial testimony of Respondents president Splawn at the
underlying unfair labor practice hearing on September
13 1978 did not validate Respondents mailgram In his
trial testimony on September 13 1978 Respondent s
president Splawn only stated that he intended to offer
Bate employment in the future Even considering the
mailgram in light of that earlier testimony the mailgram
still fails to constitute a valid offer of reinstatement Ad
ditionally Respondents mailgram did not allow suffi
dent time for Bnte to make a considered choice as to
whether he desired to return to work at Respondent
even if the mailgram 'iad otherwise constituted a legally
sufficient offer of reinstatement Splawn directed that the
mailgram be sent on September 21 1978 September 21
was on a Thursday On the status of this record one is
only able to speculate as to when the U S Postal Service
actually delivered the mailgram to Brite s address How
ever for discussion purposes I shall consider that it was
actually delivered the same day that Splawn directed it
be sent Bnte would therefore have had only 1 work
day (Friday September 22 1978 to consider the matter
before having to make a decision on Monday September
25 1978 with respect to the offer Such a short period
of time particularly when a weekend is involved is in
sufficient to permit an employee to properly consider an
offer because the employee would generally be unable
over the weekend to contact the personnel department at
an interim employer regarding any notice or other mat
ters that might pertain to the interim employer if the em
ployee decided to exercise an offer to return to his or
her former employer Therefore I conclude that the
mailgram in the instant case even if it had been an other
wise valid offer did not allow sufficient time for it to be
properly considered
In light of all the circumstances I find Respondent s
mailgram of September 21 1978 was not a valid offer of
reinstatement such as to toll Respondents backpay obli
gations to Brite
Respondent contends equitable principles dictate that
the General Counsel be estopped from claiming the inva
lidity of the September 21 1978 mailgram offer it made
to Brite Respondent contends the General Counsel and
the Board considered the mailgram to be a valid offer of
reinstatement to Brite and so indicated in appellate briefs
filed with the Court of Appeals for the District of Co
lumbia Circuit and the United States Supreme Court in
the underlying unfair labor practice case Respondent s
president Splawn testified at trial in the instant case that
JOHN CUNEO INC 81
he relied on the Board s interpretation of the mailgram as
set forth in the Board s briefs both to the circuit court
and Supreme Court to confirm his own belief that he
had made a legally sufficient offer of reinstatement to
Bate such as to toll any backpay obligations Respondent
had to Brite Respondent contends that to now allow the
Board through the General Counsel to change its posi
tion from that which it had expressed in appellate bnefs
would be to allow Bnte to be unjustly enriched and Re
spondent to be harshly penalized
The General Counsel contends among other things
that Respondent may not legally rely on positions taken
by the General Counsel in appellate bnefs because such
briefs do not constitute opinions orders or pleadings of
the Board Therefore the General Counsel contends that
equitable estoppel is not available as a defense to Re
spondent in the instant case
Respondent correctly contends that the Board in its
brief to the Court of Appeals for the District of Colum
bia Circuit on petition for review and cross application
for enforcement stated
At the time of the hearing in this matter neither
Melvin Talkmgton nor Jerry Brite had been offered
reinstatement
During the heanng on September 21 1978 Bnte
was offered reinstatement [R Exh 11]
In its brief to the circuit court the General Counsel
indicated he was relying on the September 21 1978 mail
gram of Respondent in making the statement to the cir
cuit court that Brite had been offered reinstatement
The United States Solicitor General on behalf of the
Board in a brief to the United States Supreme Court on
petition for a writ of certiorari stated
As of the commencement of the hearing in this
case neither Melvin Talkington nor Jerry Bnte had
been offered reinstatement
Bate was offered reinstatement during the hear
ing[RExh12]
Again the General Counsel indicated he was relying
on the mailgram that Respondent had sent to Bnte on
September 21 1978 to make the statement to the Su
preme Court that Bnte had been offered reinstatement
In my opinion Respondent may not be relieved of any
backpay obligations it otherwise has to Bnte simply be
cause the Board made certain comments regarding Re
spondent s mailgram offer in bnefs it filed with the cir
curt court and Supreme Court The primary issue
whether the September 21 1978 mailgram was a valid
offer of reinstatement had never been litigated prior to
the instant case It would amount to punitive action
against a claimant to allow comments in an appellate
brief of any party to deprive the claimant of any backpay
he or she might otherwise be entitled to Respondent had
a firm obligation to reinstate Bnte and make him whole
Any failure to properly and validly offer him reinstate
ment must be borne by Respondent I reject Respond
ent s contention that equitable principles should estop the
Board from claiming that the September 21 1978 mail
gram was an invalid offer of reinstatement
D Whether the Claimant (Bute) is Entitled to
Backpay for that Period of Time When He and Others
Engaged in a Lawful Strike Against an Interim
Employer
The facts with respect to this particular issue are not
in dispute The claimant (Bete) was employed for a
period of time in 1981 by Koehring Lorain Division
Chattanooga Tennessee The parties stipulated there was
an authorized strike at Lorain from August 1 until Octo
ber 19 1981 and that Bnte among others participated
in the strike and withheld their services from Lorain
The net amount of backpay the General Counsel seeks
for the third and fourth quarters of 1981 is $1939 61 The
parties stipulated that this amount of backpay directly
corresponds to the time Brite withheld his services from
Lorain because of the strike at Lorain The parties fur
ther stipulated that if Bnte was not entitled to any back
pay for the period of time that he was on strike at his
interim employer that the deducted amount would be
$1939 61
The General Counsel did not take a firm position in
brief on this issue but rather simply stated there were
two ways to approach this particular issue The General
Counsel first contends that if Bnte had been timely re
called by Respondent he would not have been placed in
the position of participating in a strike at an interim em
ployer The General Counsel asserts Bnte s lack of em
ployment during the time he was on strike at Lorain was
a direct result of Respondents actions and as such
should not impact on his entitlement to backpay for the
time period in question On the other hand the General
Counsel points out that it is true that Bnte did absent
himself from the job market during the period of time
that he participated in the strike at his interim employer
The General Counsel sums his position up on this issue
by suggesting it would be more logical to allow backpay
to be awarded to Brite for the time that he was on strike
at his interim employer
The Union did not address this issue in its posttnal
brief
Respondent contends Bnte s participation in the strike
at his interim employer constituted a clear instance of a
willful loss of interim earnings Respondent argues Bnte
had a statutory right to work at his interim employer
(Lorain) during the stake and his loss of earnings due to
his refusal to do so is not attributable to Respondent Re
spondent urges that in a situation such as the instant case
the employee must choose either eligibility for backpay
or concerted activity Respondent urges that Bnte not be
awarded backpay for the time he willfully participated in
a stake against his interim employer
For purposes of discussion and without considering
possible exceptions not applicable in the instant case an
employee such as Bnte may with protection from the
Act engage in a strike against an interim employer
However such an employee cannot elect to strike
against his interim employer and simultaneously demand
that his original employer (that unlawfully failed to rein
state him) pay him for not working at his interim em
ployer See Southwestern Pipe 179 NLRB 364 at 365
(1969) The time that claimant Bnte was on strike at his
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interim employer constitutes a willful loss of earnings
See Ozark flardwood Co 119 NLRB 1130 at 1136
(1957) Accordingly I recommend Bastes entitlement to
backpay be reduced by a net amount of $1939 61 for the
third and fourth quarters of 1981 This finding means
that claimant Baste is not entitled to any backpay for the
calendar year 1981 inasmuch as he was not entitled to
any backpay for the first and second quarters of 1981
E Whether the Claimant (Bute) Failed to Exercise
Reasonable Diligence with Respect to Obtaining
Interim Employment
The backpay specification alleges that Brite had inter
im earnings that exceeded the gross backpay he would
have earned at Respondent for each quarter in 1978
1979 and 1980 and for the first two quarters of 1981 and
the first quarter of 1982 Respondent admits that Bnte
had interim earnings of at least the amounts set forth in
the backpay specification for the time periods indicated
Baste testified that at all other times during the backpay
period he actively sought employment Baste provided
Respondent with a list of 23 places that he visited in an
effort to obtain employment between the period of May
25 1982 and August 22 1983 10 Baste testified he visited
the employers on the list more than once and that he
also visited potential employers other than those on the
list Baste testified that some of the others he sought em
ployment from other than those on the list were W R
Grace Velseco Roper Company and the Blue Berry
Bus Company Brite testified he placed a number of tele
phone calls to out of town employers because he was not
able to find employment in Chattanooga Tennessee
Baste stated he sought employment at American Ship
building Company in Nashville Tennessee and that he
also sought employment at employers in Dalton Geor
gia and Cleveland Tennessee Baste testified he regis
tered with the Tennessee Department of Employment
Security
Respondent urges that I discredit Baste s testimony
that he searched for interim employment based on
Baste s testimony that the list of employers he visited was
just certain manufacturers that might hire welders Re
spondent further urges that I discredit Baste s testimony
regarding his seeking interim employment because Baste
after agreeing to do so declined to sign a release that
would have enabled Respondent to have obtained any
records on Brite that were on file with the Tennessee
Department of Employment Security I I
In assessing Baste s credibility I have noted elsewhere
in this decision that he would place on an application for
employment only that information that he deemed help
ful to him even though the employment application
called for a disclosure of his full employment history I
have also pointed out that this casts a cloud of disbelief
over portions of Brite s testimony However, I am per
suaded Baste testified truthfully about his efforts to seek
interim employment Brite obtained employment for
many of the quarterly periods between 1977 and 1982
Baste s various employment persuades me that he active
ly sought employment Brite impressed me as an individ
ual who wanted and actively sought to be employed
Accordingly I credit his testimony that he sought inter
im employment I am persuaded Respondent has failed to
establish that Baste willfully incurred any loss of earnings
by either failing to seek employment or by unjustifiably
refusing to accept desirable employment I reject Re
spondent s contention Baste incurred any willful loss of
earnings because I am fully persuaded Baste made every
reasonable effort to obtain interim employment in an
honest and good faith manner
In summary I am persuaded that the General Counsel
has established that Brite is entitled to backpay in the
amount of $500 53 for the fourth quarter of 1977 Baste s
interim earnings exceeded his gross backpay for all quar
terly periods in 1978 1979 1980 and the first two quar
ters of 1981 Therefore Baste is riot entitled to any net
backpay for those periods Inasmuch as I have deter
mined that Baste is not entitled to backpay during the
time that he was on strike at an interim employer I shall
not allow any net backpay for Brite for the third and
fourth quarters of 1981 Baste s interim earnings exceeded
his gross backpay for the first quarter of 1982 therefore,
he is not entitled to any backpay for that period I find
that the General Counsel has established that Baste is en
titled to $216 96 for the second quarter $3380 for the
third quarter and $3540 for the fourth quarter of 1982 I
find the General Counsel has established that Baste is en
titled to $3640 for each of the first two quarters of 1983,
and $1960 for the third quarter of that same year I find
the net backpay plus interest due Baste is $16 877 49
CONCLUSIONS OF LAW
The backpay formula as propounded by the General
Counsel is appropriate in determining the money due
Baste to make him whole for losses incurred by him as a
result of the discrimination practiced against him from
November 14 1977 until August 19 1983
Bnte is entitled to net backpay plus interest from Re
spondent in the amount of $16,877 49
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
e i 2
10 Although the list was marked for identification purposes as R Exh
20 Respondent did not offer to have the marked exhibit placed in evi 12 If no exceptions are filed as provided by Sec 102 46 of the Board s
dence Rules and Regulations the findings conclusions and recommended
I I It is noted that Respondent did not seek a subpoena for the purpose Order shall as provided in Sec 102 48 of the Rules be adopted by the
of obtaining any records from the Tennessee Department of Employment Board and all objections to them shall be deemed waived for all pur
Security poses
JOHN CUNEO INC 83
ORDER
The Respondent John Cuneo Inc Chattanooga, Ten
nessee its officers agents successors and assigns shall
make whole Jerry Brite by paying hun the sum of
$16 877 49 13 plus interest thereon in the manner hereto-
fore prescribed in this case
Quarter Amount
4th-1977 $ 500 53
2d-1982 216 96
3d-1982 338000
4th-1982 354000
1st-1983 3 640 00
2d-1983 364000
3d-1983 196000
Total $ 16 877 49
13 The quarterly amounts are